State v. Gilbert (Slip Opinion) ( 2014 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Gilbert, Slip Opinion No. 2014-Ohio-4562.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2014-OHIO-4562THE STATE OF OHIO, APPELLANT, v. GILBERT, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets,
it may be cited as State v. Gilbert, Slip Opinion No. 2014-Ohio-4562.]
Criminal law—Finality of judgment—Once a defendant has been sentenced by a
trial court, that court does not have jurisdiction to entertain a motion by
the state to vacate the defendant’s guilty plea and sentence based upon the
defendant’s alleged violation of a plea agreement.
(No. 2013-0382—Submitted February 25, 2014—Decided October 21, 2014.)
APPEAL from the Court of Appeals for Hamilton County,
No. C-110382, 2013-Ohio-238.
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SYLLABUS OF THE COURT
Once a defendant has been sentenced by a trial court, that court does not have
jurisdiction to entertain a motion by the state to vacate the defendant’s
guilty plea and sentence based upon the defendant’s alleged violation of a
plea agreement.
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SUPREME COURT OF OHIO
O’NEILL, J.
{¶ 1} In a plea negotiation, appellee, Kareem Gilbert, received the
benefit of a bargain with the state but simply chose not to live up to his end of the
deal.
{¶ 2} After he was indicted on several charges, Gilbert agreed in a plea
agreement to testify against his father, Ruben Jordan, in a murder case. In
exchange, some of the charges against Gilbert were amended or dismissed. The
trial court proceeded to sentence Gilbert without waiting for him to testify against
his father as anticipated in the plea agreement. Later, after he began serving his
time in prison, he refused to testify as promised. A year after he was sentenced,
the state claimed that Gilbert had breached the plea agreement by failing to give
truthful testimony against his father. He was brought back to court from prison,
the trial court threw out the former plea, and Gilbert entered a second plea. He
was resentenced, and he then appealed to the First District Court of Appeals. That
court reversed the trial court’s decision, holding that the trial court did not have
the authority to reconsider its own final judgment. We agree.
{¶ 3} Once the final judgment was entered and Gilbert was sentenced to
prison, the trial court lost jurisdiction to vacate its judgment of conviction and to
resentence Gilbert. There must be finality to a court’s judgment. There is no
authority for a court to revisit a sentence that has already been imposed based on a
defendant’s failure to fulfill his obligations under a plea agreement.
Facts and Procedural History
{¶ 4} Kareem Gilbert was indicted by the Hamilton County Grand Jury
on March 12, 2009, on two counts of aggravated murder with firearm
specifications, two counts of having weapons while under disability, and one
count of intimidation of a witness. On May 18, 2010, Gilbert entered into a plea
agreement whereby he would plead guilty to one count of manslaughter with a
firearm specification, one count of having weapons while under disability, and
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one count of intimidation of a witness and be sentenced to 18 years in prison. In
exchange, Gilbert agreed to cooperate with the state and testify in a murder
prosecution against his father, Ruben Jordan. Gilbert was sentenced the same day
to 18 years’ imprisonment.
{¶ 5} On May 18, 2011, exactly one year later, the state asked the trial
court to vacate Gilbert’s plea because he had failed to cooperate with the state in
its prosecution of Jordan. The trial court granted the request, withdrew the
original plea agreement, and vacated the sentence. Based upon the trial court’s
action, Gilbert entered into a second plea agreement and was sentenced to
imprisonment of 18 years to life. He filed a direct appeal on June 23, 2011, and
subsequently filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967), asserting that there were no meritorious issues to
argue. However, on March 30, 2012, the appellate court ordered briefing on the
issue whether the trial court had authority to grant the state’s motion to vacate
Gilbert’s original plea and then reconsider its own judgment and resentence
Gilbert. 2012-Ohio-1366, ¶ 7-11.
{¶ 6} On January 30, 2013, the appellate court reversed the trial court’s
decision by a two-to-one vote. 2013-Ohio-238. Specifically, the appellate court
held that the trial court did not have the authority to reconsider its final judgment
after the defendant had been sentenced. The fact that the defendant had breached
the plea agreement was and is irrelevant. Once the defendant was sentenced, a
final order existed, and there was no authority for the trial court to revisit its
judgment even though the plea agreement had been breached. The court of
appeals reversed and remanded to the trial court to vacate its May 2011 order
granting the state’s motion to vacate the original plea and sentence and to
reinstate its May 2010 sentence.
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Analysis
{¶ 7} The question at the center of this appeal is whether a trial court can
revisit its earlier acceptance of a plea agreement and final judgment when a
defendant fails to abide by the terms of that plea agreement. The answer to this
question is undoubtedly no. The state argues that the plea agreement is a contract
between the state and the defendant and that a breach of that contract requires a
court to revisit the original plea and treat it as though the agreement had never
been made. While this may appear to be an equitable outcome, it simply is not
supported by the law. It would require that a trial court have jurisdiction to
reconsider its own valid final judgment.
{¶ 8} Crim.R. 32(C) lists the requirements for a valid final judgment in a
criminal case. It provides that a judgment must set forth the fact of the
conviction, the sentence, the judge’s signature, and the time stamp indicating that
the clerk entered the judgment in the journal. We have said that such a judgment
“is a final order subject to appeal under R.C. 2505.02.” State v. Lester, 130 Ohio
St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 1. See also State v. Carlisle, 131
Ohio St.3d 127, 129, 2011-Ohio-6553, 961 N.E.2d 671, ¶ 11 (a judgment of
conviction is final when it meets each of the requirements of Crim.R. 32(C)). In
the present case, the May 24, 2010 judgment of the trial court finding Gilbert
guilty and sentencing him to 18 years in prison satisfied each of those four
requirements. It was, therefore, a valid final order. Additionally, “[a]bsent
statutory authority, a trial court is generally not empowered to modify a criminal
sentence by reconsidering its own final judgment.” Carlisle at ¶ 1. This court is
committed to the principle that finality creates “ ‘ “certainty in the law and public
confidence in the system’s ability to resolve disputes.” ’ ” Miller v. Nelson-Miller,
132 Ohio St.3d 381, 2012-Ohio-2845, 972 N.E.2d 568, ¶ 18, quoting Strack v.
Pelton, 70 Ohio St.3d 172, 175, 637 N.E.2d 914 (1994), quoting Knapp v. Knapp,
24 Ohio St.3d 141, 144-145, 493 N.E.2d 1353 (1986).
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{¶ 9} Once a final judgment has been issued pursuant to Crim.R. 32, the
trial court’s jurisdiction ends. While this court does not dispute the fact that
contract principles generally apply to the interpretation and enforcement of plea
agreements, State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d
150, ¶ 50, those principles are not so flexible to permit jurisdiction to be
maintained in perpetuity to enforce such agreements.
{¶ 10} The state also argues that Gilbert submitted to the court’s
jurisdiction when he entered a second plea after he was brought back to the trial
court for resentencing. But the trial court no longer had jurisdiction, and a
defendant cannot waive that which does not exist. Colley v. Colley, 43 Ohio St.3d
87, 92, 538 N.E.2d 410 (1989) (subject-matter jurisdiction generally cannot be
effected by agreement or consent). In State v. Purnell, 171 Ohio App.3d 446,
2006-Ohio-6160, 871 N.E.2d 613, ¶ 12 (1st Dist.), the First District Court of
Appeals stated:
The parties cannot confer by consent or acquiescence
subject-matter jurisdiction on a court where it is otherwise lacking.
See Colley v. Colley (1989), 43 Ohio St.3d 87, 92, 538 N.E.2d 410,
citing Commodity Futures Trading Comm. v. Schor (1986), 478
U.S. 833, 106 S.Ct. 3245, 92 L.Ed.2d 675; see, also, State v. Flynt
(1975), 44 Ohio App.2d 315, 317, 73 O.O.2d 373, 338 N.E.2d 554(“Since jurisdiction of subject matter is fixed by law, the consent
of the defendant cannot create such jurisdiction”).
{¶ 11} The state relies on numerous cases to support its argument that the
trial court retains jurisdiction when a defendant breaches a plea agreement,
including Bethel; State v. Adkins, 161 Ohio App.3d 114, 2005-Ohio-2577, 829
N.E.2d 729; and State v. Gilroy, 195 Ohio App.3d 173, 2011-Ohio-4163, 959
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N.E.2d 19. However, in each of these cases, the defendant had not been
sentenced at the time the trial court considered whether the plea agreement had
been breached. Thus, each of these cases is distinguishable because the trial
court’s jurisdiction was not an issue. Instead, in each of these cases, the state
followed the common practice of ensuring that the defendant had complied with
the plea agreement prior to imposing the sentence and entering a final judgment.
Should a defendant experience a change of heart and renege on a plea agreement
before a sentence has been imposed, the trial court is still able to ensure that the
defendant does not receive anything that he or she is not entitled to receive
regarding the dismissal of any charges or a lesser sentence. There is no
justification to create an exception from this standard procedure.
{¶ 12} In its second proposition of law, the state asserts that double
jeopardy does not prevent the second prosecution of Gilbert. A review of the
appellate court’s opinion, however, reveals that it never addressed Gilbert’s
double-jeopardy argument but found, instead, that it was moot. It appears that the
state raised this argument to preempt Gilbert’s possible argument that the
resentencing was prohibited by double jeopardy. It is not an affirmative
argument, and based on our decision to uphold the decision of the First District
Court of Appeals that Gilbert could not be reconvicted and resentenced on
grounds other than double jeopardy, it is moot.
Conclusion
{¶ 13} Based upon the foregoing analysis, we hold that once a defendant
has been sentenced by a trial court, that court does not have jurisdiction to
entertain a motion by the state to vacate the defendant’s guilty plea and sentence
based upon the defendant’s alleged violation of a plea agreement. If the trial
court is concerned with the defendant abiding by the terms of the plea agreement,
the solution is to postpone sentencing until after the defendant has performed the
desired act. As every teacher knows, you reward the student after the desired
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behavior occurs, not before. Much like teaching, plea negotiations are driven by
the fact that the incentive to do the act in question disappears once the reward has
been given.
{¶ 14} The judgment of the court of appeals is affirmed, and the cause is
remanded to the trial court for further proceedings consistent with this opinion.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, LANZINGER, and FRENCH, JJ., concur.
O’DONNELL and KENNEDY, JJ., dissent.
_________________
O’DONNELL, J., dissenting.
{¶ 15} Respectfully, I dissent.
{¶ 16} This case presents two principal issues for our consideration: one,
whether a court has inherent authority to vacate a judgment in a criminal case to
correct a fraud perpetrated against it by a defendant and two, whether double
jeopardy bars further prosecution of that defendant. My views are that the court
does have such authority and that double jeopardy does not bar further
prosecution of the defendant who purported to commit fraud against the court,
and who expressly waived that right.
{¶ 17} Appellee, Kareem Gilbert, perpetrated a fraud on the trial court by
providing a 50-page written statement to the state and agreeing to testify truthfully
about criminal violations of his father in exchange for a favorable plea to a lesser
included offense and later recanting that statement. Because he did so, the court
vacated his guilty plea to a lesser but included offense and the judgment of
conviction. Double jeopardy is not at issue in this case, because Gilbert expressly
waived this constitutional protection.
Facts and Procedural History
{¶ 18} Around 1:00 AM on the morning of October 16, 2008, Kareem
Gilbert, Bryan Austin, and Victor Davis were near the intersection of Elder and
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Republic Streets in Cincinnati, Ohio. Gilbert began to argue with Austin, and
Austin hit Gilbert with a meatball sub sandwich that spilled onto Gilbert’s white
T-shirt. Gilbert left, retrieved a handgun, returned, and shot Austin numerous
times, killing him. The state alleged that Gilbert later shot and killed Davis.
{¶ 19} On March 12, 2009, a Hamilton County grand jury indicted Gilbert
on two counts of aggravated murder with firearm specifications, one count of
witness intimidation, and two counts of having a weapon while under disability.
Gilbert pleaded not guilty to all charges.
{¶ 20} About 14 months later—on May 18, 2010—the parties entered into
a plea agreement, which states:
2. The Defendant agrees to provide truthful, complete, and
accurate information during the investigation and prosecution of
any criminal offenses of which he has relevant information;
3. The Defendant agrees to testify truthfully, completely,
and accurately in any legal proceeding in which he is called to
testify as a witness, including but not limited to any juvenile
proceeding, grand jury, or trial, whether civil or criminal in nature;
4. Specifically, the Defendant agrees to give truthful and
complete testimony as a State’s witness against Ruben Jordan.
The Defendant states the statement he provided to the Cincinnati
Police Department on May 17, 2010, regarding Mr. Jordan was
truthful and complete. The Defendant additionally agrees to testify
truthfully before the Hamilton County Grand Jury. * * *
Furthermore, the Defendant agrees to testify concerning any
criminal violations against any and all individuals targeted in these
investigations resulting from cooperation. * * *
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5. In exchange for and in consideration of the
aforementioned cooperation, the Hamilton County Prosecutor’s
Office agrees to resolve the Defendant’s pending cases in the
following manner: Defendant will plea to Count one as voluntary
manslaughter with a firearm specification, count two weapon
under disability, and count three intimidation of crime
victim/witness. The State will dismiss all remaining counts and
specifications. The State would enter into an agreed prison
sentence of 18 years in the Ohio Department of Corrections. The
Defendant further states that he has been promised nothing in
addition to that which is stated herein, and that this document fully
incorporates the complete understanding of the parties;
6. The Defendant agrees and understands that completion
of the terms of this agreement is to be determined by the Hamilton
County Prosecutor’s Office. If it is determined by the Hamilton
County Prosecutor’s Office that at any time the Defendant fails to
cooperate fully, refuses to testify, or testifies falsely in any
proceeding, intentionally gives false, misleading, or incomplete
information or testimony, compromises his value as a witness, or
otherwise violates any terms of this agreement, then the Hamilton
County Prosecutor’s Office may reinstate the original charges
against the Defendant as well as any additional charges which may
be appropriate. The parties will be returned to their respective
positions prior to the execution of this agreement with the
expressed exception that the proffer statement taken of the
Defendant is admissible in the prosecution against him, as
provided in Paragraph Two: (¶ 2) above. Additionally, the
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Defendant specifically waives an argument of double jeopardy or
speedy trial rights with regard to any charges against him.
7. The Defendant waives any Constitutional or statutory
rights to a speedy trial during the life of this agreement;
8. The Defendant waives any Constitutional right against
twice being placed in jeopardy with respect to any offenses that the
State may prosecute if this agreement is terminated.
{¶ 21} In accordance with this agreement, Gilbert withdrew his not guilty
pleas and pleaded guilty to one count of voluntary manslaughter with a firearm
specification, one count of having a weapon while under a disability, and one
count of witness intimidation, with the parties agreeing to an aggregate 18-year
prison term. At the May 18, 2010 sentencing hearing, Gilbert specifically agreed
to abide by the plea agreement. In exchange for the reduction of one aggravated
murder charge to voluntary manslaughter and the dismissal of the other
aggravated murder charge and a charge of having a weapon while under
disability, the state represented to the court that Gilbert
agreed and entered into a written agreement with the State to
provide truthful, complete, and accurate information during the
investigation and to testify in the prosecution of his father, Ruben
Jordan, who [was] charged with the aggravated murder of Victor
Davis.
By entry dated May 24, 2010, the trial court convicted Gilbert of three offenses,
dismissed two charges, and imposed the recommended sentence.
{¶ 22} Later, the state moved to vacate the plea agreement. At the hearing
on its motion to vacate, it argued that Gilbert had failed to give truthful testimony
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against his father. The prosecutor represented that Gilbert “recanted his 50-
page—some of it—statement, especially as it pertained to Mr. Jordan, him
eyewitnessing the murder of Mr. Davis and saying his father was the one that
killed him. I think he said they were both at home * * * watching a football
game.”
{¶ 23} Gilbert did not object to the state’s motion, and his counsel
conceded that Gilbert
broke his contract with the State by, at some point, giving
incomplete information or perhaps inaccurate testimony at the time
that the plea agreement was made and thereby not following
through with that contract. And so, for that reason, he doesn’t
object to the plea being vacated, but it is his position that he gave
truthful testimony during the trial against his father.
Gilbert’s counsel also stated: “It is his position that he told the truth on the stand
and that he had lied prior to that to the State and to the officers in order to get a
better deal for himself.”
{¶ 24} The court granted the state’s motion and set aside Gilbert’s plea.
Pursuant to a second plea agreement, Gilbert pleaded guilty to one count of
murder with a firearm specification and one count of having a weapon while
under disability, with a recommended aggregate sentence of 18 years to life. The
court convicted Gilbert of the two offenses and imposed the recommended
sentence.
{¶ 25} Gilbert appealed. His counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and moved to
withdraw as appellate counsel. The appellate court determined that legal points
arguable on their merits remained to be resolved, granted the motion to withdraw,
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appointed new counsel, and ordered briefing on whether the trial court “had
authority to grant the state’s motion to vacate Gilbert’s pleas and to reconsider
and modify its May 2010 criminal sentence, and on any other matter counsel may
discover in a diligent review of the record.” 2012-Ohio-1366, at ¶ 10. The court
of appeals subsequently reversed the trial court judgment, determining that the
trial court “lacked the authority to reconsider the May 2010 valid final judgment.”
2013-Ohio-238, ¶ 21.
{¶ 26} The state appealed to this court. We accepted jurisdiction on two
propositions of law raising these issues: whether, when a party breaches a plea
agreement, a trial court has authority to vacate the plea and whether the double
jeopardy clause barred the prosecution of Gilbert, when he “understood that if he
breached the agreement the original charges could be reinstated.”
Law and Analysis
{¶ 27} “Fraud connotes perjury, falsification, concealment,
misrepresentation.” Knauer v. United States, 328 U.S. 654, 657, 66 S.Ct. 1304,
90 L.Ed. 1500 (1946). While Gilbert maintained that he testified truthfully at his
father’s trial, the record suggests that he acted fraudulently in negotiating his first
plea agreement. He essentially admitted to making misrepresentations to the state
as demonstrated by his attorney’s statement that Gilbert gave “incomplete
information and perhaps inaccurate testimony at the time that he plea agreement
was made” and he “had lied * * * to the State and to the officers in order to get a
better deal for himself.”
{¶ 28} Gilbert also perpetrated a fraud on the trial court because, by
fraudulently entering into the plea agreement, he tampered with the administration
of justice and subverted the integrity of the judicial process as a whole. See
Coulson v. Coulson, 5 Ohio St.3d 12, 15, 488 N.E.2d 809 (1983) (“ ‘Fraud upon
the court’ is an elusive concept. * * * It is generally agreed that ‘ * * * [a]ny
fraud connected with the presentation of a case to a court is a fraud upon the
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court, in a broad sense.’ 11 Wright & Miller, Federal Practice and Procedure
(1973) 253, Section 2870”).
{¶ 29} A federal court has inherent power to vacate a judgment upon
proof that a fraud has been perpetrated on it. Chambers v. NASCO, Inc., 501 U.S.
32, 44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). In Chambers, the United States
Supreme Court stated:
This “historic power of equity to set aside fraudulently begotten
judgments,” Hazel–Atlas [Glass Co. v. Hartford-Empire Co.], 322
U.S. [238] at 245, 64 S.Ct. [997, 88 L.Ed. 1250 (1944)] is
necessary to the integrity of the courts, for “tampering with the
administration of justice in [this] manner * * * involves far more
than an injury to a single litigant. It is a wrong against the
institutions set up to protect and safeguard the public.” Id., at 246,
64 S.Ct., at 1001.
{¶ 30} In the context of divorce, this court has established a trial court’s
authority to vacate a judgment after a party has committed a fraud upon the court.
Jelm v. Jelm, 155 Ohio St. 226, 98 N.E.2d 401 (1951), paragraph two of the
syllabus; Van DeRyt v. Van DeRyt, 6 Ohio St.2d 31, 36, 215 N.E.2d 698 (1966) (a
court “does have inherent power to vacate after term a judgment * * * which is
voidable for fraud or collusion”). In Van DeRyt at 36, we recognized:
A court draws the power to vacate from the reason for its
existence—to render justice; for where fraud or collusion is
practiced on a court, the court ceases to function as a court and its
judgment becomes an official stamp lent to the subversive
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intentions of the abusing parties. To protect its integrity, a court
has inherent power to crush the fruits of fraud and collusion.
{¶ 31} Notwithstanding any commitment this court may have to the
principle of finality of judgments, see majority opinion at ¶ 8, such a pledge
cannot overshadow its duty to preserve the integrity of the judicial system and
“crush the fruits of fraud,” Van DeRyt at 36.
{¶ 32} In my view, a trial court has inherent authority to vacate a
judgment in a criminal case due to a fraud committed upon it, apart from its
authority to reconsider a valid, final judgment when a void sentence has been
imposed or when a judgment contains a clerical error.
{¶ 33} The majority’s holding that once “a defendant has been sentenced
by a trial court, that court does not have jurisdiction to entertain a motion by the
state to vacate the defendant’s guilty plea and sentence based upon the
defendant’s alleged violation of a plea agreement,” majority opinion at ¶ 13,
conflates the concepts of a court’s inherent power and its jurisdiction. As early as
1896, this court recognized that there is a difference between a court’s inherent
power and its jurisdiction. In Hale v. State, 55 Ohio St. 210, 213, 45 N.E. 199(1896), we stated:
The difference between the jurisdiction of courts and their inherent
powers is too important to be overlooked. In constitutional
governments their jurisdiction is conferred by the provisions of the
constitutions and of statutes enacted in the exercise of legislative
authority. That, however, is not true with respect to such powers
as are necessary to the orderly and efficient exercise of
jurisdiction. Such powers, from both their nature and their ancient
exercise, must be regarded as inherent. They do not depend upon
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express constitutional grant, nor in any sense upon the legislative
will.
{¶ 34} Article IV, Section 4(A) of the Ohio Constitution provides that
there “shall be a court of common pleas and such divisions thereof as may be
established by law serving each county of the state,” and Section 4(B) establishes
that “courts of common pleas and divisions thereof shall have such original
jurisdiction over all justiciable matters * * * as may be provided by law.”
Pursuant to R.C. 2931.03, a court of common pleas “has original jurisdiction of
all crimes and offenses, except in cases of minor offenses the exclusive
jurisdiction of which is vested in courts inferior to the court of common pleas.”
The trial court convicted Gilbert in May 2010 in accordance with its original
jurisdiction.
{¶ 35} The record shows that Gilbert did not object to the trial court’s
exercise of subject matter or personal jurisdiction at the hearing regarding the
state’s motion to vacate. “ ‘Once a tribunal has jurisdiction over both the subject
matter of an action and the parties to it, “* * * the right to hear and determine is
perfect; and the decision of every question thereafter arising is but the exercise of
the jurisdiction thus conferred * * *.” ’ ” Pratts v. Hurley, 102 Ohio St.3d 81,
2004-Ohio-1980, 806 N.E.2d 992, ¶ 12, quoting State ex rel. Pizza v. Rayford, 62
Ohio St.3d 382, 384, 582 N.E.2d 992 (1992), quoting Sheldon’s Lessee v. Newton,
3 Ohio St. 494, 499 (1854). Because Gilbert did not challenge the trial court’s
exercise of jurisdiction after subject matter and personal jurisdiction were
perfected, he forfeited any claim of jurisdictional error, absent plain error.
Crim.R. 52(B); State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d
306, ¶ 23. However, in this case, no plain error exists because, when the trial
court vacated the May 2010 judgment, it properly exercised jurisdiction of the
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cause pursuant to its inherent authority and Gilbert acquiesced to its exercise of
personal jurisdiction.
{¶ 36} Finally, I disagree with the majority’s view that the state’s
argument related to double jeopardy in its second proposition of law “is not an
affirmative argument * * * [and] it is moot.” Majority opinion at ¶ 12. While the
appellate court determined that Gilbert’s assignment of error asking that court to
determine whether the trial court’s order violated Gilbert’s constitutional
protections against double jeopardy was moot, 2013-Ohio-238, ¶ 20, we accepted
jurisdiction of the state’s second proposition of law, which states: “The double
jeopardy clause did not bar the prosecution of [Gilbert] where both parties
bargained for and received substantial benefits, and [Gilbert] understood that if he
breached the agreement the original charges could be reinstated.” 135 Ohio St.3d
1458, 2013-Ohio-2258, 988 N.E.2d 578. The state’s second proposition of law
thus asserts an affirmative argument. See Black’s Law Dictionary 70 (10th
Ed.2014) (affirmative means “[s]upporting the existence of certain facts”).
{¶ 37} Second, because in Gilbert’s first plea agreement, he expressly
waived any double jeopardy argument as to any charges against him as well as
any protection from twice being placed in jeopardy relating to any offenses that
the state might bring against him if the agreement were terminated, double
jeopardy is not a concern in this case. See State v. D.W., 133 Ohio St.3d 434,
2012-Ohio-4544, 978 N.E.2d 894, ¶ 24 (a party may waive constitutional rights as
long as the waiver is made knowingly and intelligently and is an intentional
relinquishment of a known right).
{¶ 38} Accordingly, I would reverse the judgment of the court of appeals
because a court has inherent authority to reconsider its judgment to protect the
integrity of the judicial system when a defendant perpetrates a fraud upon it.
KENNEDY, J., concurs in the foregoing opinion.
_________________
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Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J.
Machol, Assistant Prosecuting Attorney, for appellant.
Ravert J. Clark, for appellee.
Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L.
Taylor, Assistant Prosecuting Attorney, urging reversal for amicus curiae Ohio
Prosecuting Attorneys Association.
Michael DeWine, Attorney General, and Matthew A. Kanai, Assistant
Attorney General, urging reversal for amicus curiae Attorney General of Ohio.
Timothy Young, Ohio Public Defender, and Terrence K. Scott, Assistant
Public Defender, urging affirmance for amicus curiae Ohio Public Defender.
_________________
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